Patchak v. Zinke did not get a lot of attention before the oral argument, and it probably won’t be splashed across the national media after the decision Tuesday morning. Yet it may have more staying power than many of the court’s more publicized decisions, as it provoked bitter disagreement among the justices about foundational questions regarding the boundaries between the power of the Supreme Court to decide cases and the power of Congress to define the law that the courts apply.

Most of the cases in which this topic arises involve disputes of national moment; the two most prominent previous cases concern pardoning Confederate soldiers and human-rights litigation against Iran. This case, though, stems from a dispute as local and prosaic as they come: the desire of some entrepreneurs to build a casino in a remote area of southwest Michigan (more or less midway between Grand Rapids and Kalamazoo). To exempt the operation from Michigan law, it was necessary that the land be designated as tribal land. To that end, the Match-E-Be-Nash-She-Wish Band of the Pottawatomi Indians had the secretary of the Interior Department take the land into trust for the band. Despite challenges from Michigan gaming authorities, the band succeeded in opening a casino on the land.

Enter gadfly David Patchak, Michigan’s version of the irrepressible Florida litigant Fane Lozman (who coincidentally had his most recent case argued yesterday moments after the justices rejected Patchak’s claim). Patchak owned a tract of land near the casino, and he opposed the development vigorously. He started with a suit challenging the secretary’s decision under the Administrative Procedure Act, arguing that for technical reasons the Indian Reorganization Act did not permit the secretary to take land into trust for the band. That litigation was derailed for years by arguments about whether Patchak had standing to complain and whether the secretary was immune from suit. Eventually the case came to the Supreme Court, producing a 2012 decision in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak that rejected the secretary’s defenses, allowing Patchak’s suit to go forward.

Frustrated by the judicial process, the casino operators turned to Congress, which responded by enacting the Gun Lake Act of 2014, a brief statute that “reaffirmed” the casino property as trust land, “ratified and confirmed” the secretary’s decision to take it into trust, and provided that litigation challenging that decision “(including an action pending in a Federal court as of the date of enactment of this Act) … shall not be filed or maintained in a Federal court and shall be promptly dismissed.” Bowing to the congressional command, the lower courts refused to consider Patchak’s claims despite the Supreme Court’s decision in his favor.

The Supreme Court, however, granted review, giving Patchak a chance to argue that Congress’ explicit attention to his particular lawsuit transgressed the constitutional limits on its power to control litigation. The disposition of the case is starkly fractured, with no view gaining a majority. The plurality opinion comes from Justice Clarence Thomas (joined by Justices Stephen Breyer, Samuel Alito and Elena Kagan). Thomas articulates an uncompromisingly broad view of congressional authority. He views Congress’ authority to change the law that applies to pending disputes as all but absolute, even if Congress does so by entirely depriving the courts of jurisdiction to complete their consideration of disputes before them. That perspective makes this an easy case: The statute here changes the law applicable to Patchak’s claim – by depriving the courts of the power to hear the claim.

Because Congress unquestionably has the constitutional power to define the jurisdiction of the lower federal courts, Thomas finds nothing exceptionable in the statute. Once he has concluded that the statute changed the applicable law, he can dispose of the case by explaining that “a statute does not impinge on judicial power when it directs courts to apply a new legal standard to undisputed facts.” Thomas acknowledges that the statute was “a response to this Court’s decision in Patchak I,” and admits the likelihood that “the Band exercised its political influence to persuade Congress to enact a narrow jurisdiction-stripping provision that effectively ends all lawsuits threatening its casino.”

Nor does Congress’ direction of its attention to Patchak’s particular lawsuit trouble Thomas’ group of four. Quoting a pastiche of snippets from prior cases, the plurality directly confronts and rejects the idea that Congress cannot single out a particular litigant for adverse treatment: “[T]he question in this case is ‘[n]ot favoritism, nor even corruption, but power.’ … Under this Court’s precedents, Congress has the power to ‘apply newly enacted, outcome-altering legislation in pending civil cases,’ even when the legislation governs one or a very small number of specific objects.”

Rejecting Thomas’ ready approbation of congressional authority, four justices offer an almost diametrically opposed view on the matter. The principal opinion on that side comes from Chief Justice John Roberts, as fervid as ever to fend off intrusions on the domain of the federal judiciary. Roberts sees the power to resolve disputes without legislative interference as central to the Constitution’s vision of an independent judiciary. For him, the salient precedent is the Constitution’s rejection of colonial-era institutions under which legislatures routinely intervened to specify the results in pending litigation. From that history he deduces the principle that “a legislature should not be able unilaterally to impose a substantial deprivation on one person,” a principle that is violated “when [Congress] arrogates the judicial power to itself and decides a particular case.” Thus, he reasons, because Congress cannot render judgment directly, “it likewise cannot do so indirectly”; “legislative intervention … leaving the court no adjudicatory function to perform” is an “exercise of the judicial power” beyond congressional authority.

Roberts recognizes that his test suggests a vague inquiry, likely to be difficult to apply in marginal cases, but contends that no previous case has involved a statute as “brazen” as this one, because Congress has “never gone so far as to target a single party for adverse treatment and direct the precise disposition of his pending case.” Even the case (mentioned above) involving specified human-rights judgments against Iran involved “over a thousand plaintiffs who, in 16 different actions, had obtained judgments against Iran in excess of $1.75 billion—facts suggesting more generality than is true of many Acts of Congress.”

The balance of the decision comes from neither of those groups, but rather from the idea that this particular case falls outside the normal rules for jurisdiction-stripping because it involves litigation against the United States. Writing for herself and Sotomayor, Justice Ruth Bader Ginsburg explains that Congress’ broad “prerogative” to control the immunity of the federal government from litigation sets this case apart from general rules about congressional power to direct the results in litigation. “Just as it is within Congress’ prerogative to consent to suit, so too is it within Congress’ authority to withdraw consent once given.” Treating the Gun Lake Act as a displacement of the waiver of sovereign immunity that the Supreme Court discerned in Patchak I, Ginsburg and Sotomayor can join the four votes of the Thomas group to uphold dismissal of Patchak’s action.

As the summary above makes clear, the case is more likely to underscore than it is to settle the intractable task of demarcating the boundary between Congress’ routine exercise of its power to define the jurisdiction of the federal courts and its improper intrusion into the disposition of particular litigation. Suffice it to say that the conflict between the starkly disparate but evenly balanced understandings of congressional authority will not soon dissipate.

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

Major Cases

Trump v. Hawaii(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of March 23, 2018

Johnson v. Stinson Whether Johnson v. Jones precludes a federal appellate court from exercising jurisdiction over a challenge to a denial of qualified immunity that turns not upon disputed facts, but upon the disputed application of the inferences drawn by the district court from the facts, in concluding that a reasonable jury could find a violation of a constitutional right which was clearly established; and (2) whether the U.S. Court of Appeals for the 7th Circuit, sitting en banc, applied an impermissibly broad reading of Johnson v. Jones in vacating the opinion of the U.S. Court of Appeals for the 7th Circuit's three-judge panel and denying jurisdiction over Dr. Lowell T. Johnson's appeal, where the appeal sought review of the district court's determination that a reasonable jury could find that Dr. Johnson violated respondent's right to due process.